Public Policy Sources #38:
Equality in Law

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Treaties should aim at the long term result of Indians being equal with other Canadians before the law. This is not in any way to deny the existence of aboriginal rights and title which have been discovered (and continue to be found) by the courts. Rather, it is to say that modern treaties should have as one of their invariable objects the conversion of such distinctions into cash or into the same class and kind of property rights (the ownership and control of land and capital, for example) available to all other Canadians.

It must be said at once that this simple long-term goal is revolutionary in terms of existing government policy. That existing policy is to codify and constitutionalize differences between Indians and other Canadians. For reasons argued elsewhere14 the author believes this policy to be the root source of the current unhappy estate of Indians in Canada, and to be immoral in the broadest sense of the word.

The three following principles are derivatives of this broader one of eventual equality.

Municipal-type government

Senior governments have committed to the concept of a "Third Order of government" for aboriginal peoples without ever defining (even in their own private thinking) what that meant. The Third Order concept is also the bedrock underpinning the recommendations of the Royal Commission on Aboriginal Peoples. However, no court has found any constitutional support for this idea. Indeed, the Appeal Courts of both Ontario and British Columbia have explicitly rejected the concept as being inconsistent with our constitution.

The Appeal Court of BC noted15 that sovereignty is fully exhausted between the federal and provincial orders of government. There is no more left to go around. Of course, the Supreme Court of Canada may yet invent some different perspective, but for the moment, absent a constitutional amendment,16 governmental powers for sub-units must be delegated; they are not inherent or sovereign.

There are three theoretical ideas underpinning the demand for a Third Order of government. One is that Indians are different from other Canadians. According to this argument they are somehow more different from the rest of us than are men from women, than old from young, than those of Scots heritage from Chinese, than gay from straight, than left-wing socialist from hard-right capitalist, than religious from atheist, than hermit from Hutterite, and so on. Our ordinary governments in Canada manage to span all of these huge differences quite nicely, but, it is claimed, Indians are so extraordinarily different as to require a Third Order of government. I reject that idea as patent nonsense.

The second theoretical idea is that because the ancestors of modern day Indians were in Canada before the ancestors of most other Canadians, the Indian governance structure that was in place at the time of contact should in some way be re-instituted today. Why this should be is never satisfactorily explained. But governance structures in all societies around the world have changed beyond recognition over the past couple of centuries, mostly for the better. Surely the tests for governance structures for today should be grounded in utility rather than sentiment.

The final idea is that the Third Order is required (so goes the argument) as the indispensable condition for the preservation of aboriginal culture. No such legal discrimination has been necessary to preserve the aforesaid Hutterite culture on the Canadian prairies, nor the culture of the Jewish people around the world in the face of much persecution. Perhaps it is thought by the proponents of this theory that aboriginal cultures are less robust things, but is the preservation of any culture at the expense of other citizens (for such things are not cheap in dollars or, in this case, violence to other Canadian ideas such as equality and non-discrimination on the basis of race) a proper object of government? This is a truly fundamental question. I would argue that the preservation of any culture is the responsibility of its adherents, and the role of government is simply to be neutral.

The true, immediate, practical advantage of a Third Order really accrues to the Indian Industry, wherein are found the vast majority of the few Canadians seeing any sense in such an idea. A Third Order identifies elites, preserves them, and gives them status and pay. Priestly elites in the past found this to be usefully the case, and cultural elites are at it here. But is this solution good for the society that has to support it?

Equally, is this Third Order solution good for the very people it is ostensibly designed to serve? As argued elsewhere,17 it is much more likely to be a bad thing. You do a small group of people no favour by drawing a circle around them and calling them basically different.

There is no greater evidence of this point than to note that existing Indian Act band governments are already a sort of "Third Order" in all important respects save constitutional entrenchment. While providing massive funding, the federal government has at the same time withdrawn so far from interference in the internal affairs of most bands—even to the extent of failing to require proper accounting for funding, according to the Auditor General—that band governments are, to all intents and purposes, already examples of race-based governance of Indians by Indians. To put it mildly, results have not been universally positive in terms of democracy, social outcomes, accountability, or economic development. Would one seriously advocate constitutionalizing this experience?

Now, a very different and more respectable argument is that governmental or other services to people will be more effective if delivered in a culturally sensitive way. This argument has great weight, but such a system does not require a Third Order. As an example, it is one thing, for example, to have some Chinese-speaking public servants delivering services to the tens of thousands of Chinese-speaking people in the Vancouver suburb of Richmond, but quite another to suggest a Chinese Order of government.

I conclude that municipal-type governments used successfully for the governance of small communities all over Canada are far more appropriate than the constitutionalized Third Order kind. There is plenty of room for experimentation, as long as the governmental structure is of a delegated nature—i.e., instituted by legislation passed by existing levels of government, and capable of change in the light of actual experience with how things work.

Indeed, even such a governance scheme as that contemplated in the Nisga'a Treaty might well be tried with the consent of the governed, if only to show by experience whether it is or is not as deeply flawed as I think it is. However, any such trial should be an experiment, not a constitutionalized Third Order cast in concrete as is the current plan.

The experimental approach also leaves room to try out various solutions to one of the most vexing of questions, namely the right (or not) of non-aboriginals to vote for municipal-type aboriginal governments on the grounds that they live in the area to be thus governed. The approach I prefer is simply extending the franchise to all, in the usual way. A sensitive definition of territory (which in crass political parlance would be called "gerrymandering") can in many cases yield predominately aboriginal areas with aboriginal-domin- ated local governments. The new territory of Nunavut is one such example, though an extremely costly one.

Of course there are other cases, such as Westbank or Sechelt in BC where (because of extensive residential leasing to non-Indians bringing in band revenue) the aboriginal component of the territory would be swamped.18 The solution adopted in Nisga'a and evolving in Sechelt and Westbank provides for no voting rights (save for advisory organs) for non-natives in local government, and two parallel sets of laws and representation as to Indian and non-Indian, with Indian law designed to has as little an impact as possible on non-Indians.

However, apart from the deservedly bad odour in which they are held around the world, total "separate-but-equal" structures are simply not possible. Local schools and hospitals are attended by everyone (unless we want separate schools and hospitals), and local roads are driven on by everyone. Local commercial law, with Nisga'a paramountcy under the treaty, affects Nisga'a and non-Nisga'a alike. The Nisga'a/Westbank/Sechelt approach has been to provide for some non-Indian advisory input. These are legitimate experiments. But Sechelt, most importantly, is not constitutionalized.

Another theoretical approach which will no doubt be explored over the years to come is that of a tradeoff between powers and representation. In other words, the fewer powers wielded by an Indian government, the less the requirement for non-native representation. Were the powers cut back to simple aboriginal asset management, no non-native representation at all would be called for.

In the end, and with all of the above argument and uncertainty, this is the essential issue: constitutionalized Third Order or not? The issue cannot be finessed. It must be faced. The Third Order solution is not an appropriate part of treaties.

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Last Modified: Thursday, August 5, 1999.